Audrey Young: Ball in Key's court to get GCSB bill passed

At this stage, Key doesn't have the numbers to pass the bill. Photo / NZ Herald

Between a holiday with his family in Singapore last week and a trip to South Korea this week, Prime Minister John Key has some decisions to make on the GCSB bill.

On Monday, he will chair the intelligence and security committee in the Beehive as it deliberates on what changes should be made to the bill and New Zealand's foreign spy agency.

Opposition leader David Shearer is due to attend the start of Labour's caucus retreat to Napier in the morning and fly back to Wellington for the committee meeting, then return to Napier.

Shearer's nominee, Greens co-leader Russel Norman, will be there too, along with Act leader John Banks and Health Minister Tony Ryall.

At this stage, Key doesn't have the numbers to pass the bill. He needs Winston Peters or Peter Dunne - who has supplanted Peters as Parliament's mercurial politician - or Labour.

At the start of the process, Key may have been justified in thinking the others would come on board over time, not least Labour, which passed the first GCSB Bill in 2003.

He may have been justified in believing that Labour would want to be seen more as a party of Government on security matters and less as a party of protest.

But Labour made the GCSB story about John Key, not Kim Dotcom, or the agency itself. And with a few victories against him, such as fingering him for shoulder-tapping an old school mate for the GCSB directorship, it could not bring itself to support Key's bill.

Key has not been given credit for much in the process. But he clearly had concerns about the GCSB before the unlawful spying on Dotcom.

It had been run by a tight club within the defence and intelligence community and established some disturbing work habits, as the Kitteridge report exposed.

The notion that everything was hunky dory back in the days of former Chief of Defence Force Sir Bruce Ferguson is myth. Most of the legally dubious spying on New Zealanders went on under his, and Labour's, watch.

Of the 88 cases, only four were warranted, according to the agency itself.

Ian Fletcher's appointment should, at the very least, be seen as an attempt to break the stranglehold of the old boys' defence network on the agency and letting some civilian light into it.

Rebecca Kitteridge's appointment said a lot too. As Cabinet secretary she is not the minute-taker but the guardian of proper process, ensuring that things are done by the rules and the law.

It is clear from her report that the GCSB was not following the law on the issue of collecting metadata on New Zealanders and the Inspector-General of Intelligence and Security thought it was.

Labour's position, like that of the Greens, is that the legislation should have been preceded by a review of intelligence agencies.

The Greens will not support the bill under any circumstances.

Labour is not so definite. It is still open to negotiation. The ball is in Key's court.

The strong concerns by bodies such as the Privacy Commissioner, the Human Rights Commission and the Law Society have made Labour less inclined to capitulate.

But the same concerns have unsettled the public too and it is in Key's own interests to give them some reassurance.

There are three things he could do in the coming week that would make the bill more acceptable than it is now, to the public and other parties.

First, he could write two reviews into the bill, one to begin in 18 months, straight after the next election, and one every five years after that, as the Australians do.

It's effectively what Labour is promising.

Several weeks ago Key said he would promise a review only if it would get Labour on board.

He should do it to get the public on board, whether or not Labour agrees.

Secondly, he should go back to the Kitteridge report for a lead on how to beef up oversight. The report cited this quote from the 1999 Inspector-General as evidence of how woeful oversight had been: "The fact that there are very few complaints and little need for any inquiry ... of the GCSB indicates ... that the performance of their activities does not impinge adversely on New Zealand citizens".

Kitteridge said that that type of attitude changed only five years ago.

The report has high praise for the Australian model of oversight as a crucial means of maintaining public trust. The staff in the Australian Inspector-General's office run a regular audit programme, meeting the Defence Signals Directorate (the GCSB's equivalent) monthly and accessing a considerable amount of agency information.

They visit the DSD every week or two to review processes and information, the report says. Most of the Inspector-General's reports are published. The system appeared "very muscular" and was seen as robust and assertive.

The oversight improvements proposed by Key are minor by comparison - the appointment of a deputy and a panel of two people to be used as a sounding board by the Inspector-General.

If it's too late to beef up oversight even further, then it should be cited as a major part of the promised review.

Thirdly Key, as Prime Minister and the minister responsible for the GCSB, needs to make a clear statement on metadata (information about communications).

Specifically, he needs to say what the GCSB has done in the past and what constraints it will operate under in the future. He should admit that the agency has previously, on many occasions, collected metadata on New Zealanders unlawfully - believing it was doing so lawfully.

He should reassure New Zealanders, if he can do so truthfully, that there has been no mass collection of metadata passed on to intelligence partners overseas and there won't be in the future.

He should assure the public that any collection of metadata of New Zealanders in the future, like other communications, will have to be by warrant.

In the case of the GCSB carrying out its cyber security role or in the case of New Zealanders suspected of being a security threat, any interception of communications including metadata will have to be authorised by a warrant signed by both himself and the Commissioner of Warrants.

In the case of the GCSB assisting the SIS domestic spy agency and the police, any interception of communications, including the collection of metadata, will have to be duly warranted or authorised by the agency it is assisting.

The collection of metadata by the GCSB on foreigners may be with or without a warrant under the conditions set out in the act.

But at all times Key should be able to assure us that interception and collection of New Zealanders' communications will be lawful, rare, reasonable and reviewable.

Audrey Young is the New Zealand Herald’s political editor, a job she has held since 2003. She is responsible for the Herald’s Press Gallery team. She first joined the New Zealand Herald in 1988 as a sub-editor after the closure of its tabloid rival, the Auckland Sun. She switched to reporting in 1991 as social welfare and housing reporter. She joined the Herald’s Press Gallery office in 1994. She has previously worked as a journalism tutor at Manukau Technical Institute, as member of the Newspapers in Education unit at Wellington Newspapers and as a teacher in Wellington. She was a union nominee on the Press Council for six years.